disability rights tribunal in asia & the pacific project :disability rights tribunal in asia...
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Disability Rights Tribunal in Asia & the Pacific
Project :Disability Rights Tribunal in Asia & PacificFounded by TOYOTA FOUNDATION
Project LeaderSenior attorney Yoshikazu Ikehara
Focuses of my presentation
• To clarify essential factors of tribunal and to define DRTAP• To clarify the necessity of DRTAP• To investigate the possibilities of
DRTAP• To build strategies to establish DRTAP
What are essential factorsfor a “tribunal”?
Function judicial or quasi-judicial functions Authority an authority created by a statute or an
agreementPosition outside the usual judicial hierarchy Composition not of judges but of multidisciplinary
What is “DRTAP”?essential factors
Function: judicial or quasi-judicial function on disability rights
Authority: based on a regional treaty at the final stage
Position: above each domestic judiciary, similar to European Human Rights Court
Composition: persons with disabilities, lawyers and others.
Jurisdiction: Asia & the Pacific
Tentative definition of DRTAP
• DRTAP is a quasi-judicial body which adjudicates on cases involved with disability rights and is composed of persons with disabilities, lawyers and representatives of the general public.
• It aims to establish authority similar to European Human Rights Court at the final stage.
• But it requires some stages to obtain its goal.
Necessity of DRTAPdomestic aspect
• A government tends to construe CRPD as being already covered by existing law.
• They explain that there is no need to reform existing law, because it has already fulfilled the requirement of CRPD.
• If a domestic judiciary is not based on activism in disability rights issues, it can not work to promote disability rights and to eliminate discrimination against persons with disabilities.
Necessity of DRTAPtheoretical base
• International Human Rights Law is based on “the Rule of Law”.
• It is necessary for international society to protect Human Rights/Disability Rights under the Rule of Law.
• From the aspect of the Rule of Law, it is irrational that what is regarded as discrimination in one country is not regarded as discrimination in another country.
• International society/region needs judicial system to accomplish the Rule of Law.
Progress of the Rule of Lawin international society (1)
• 1948: Universal Declaration of Human Rights• 1965: International Convention on the
Elimination of All Forms of Racial Discrimination
• 1966: International Covenant on Civil and Political Rights
• 1966: International Covenant Economic, Social and Cultural Rights
Progress of the Rule of Law in international society (2)
• 1979: Convention of the Elimination on of All Forms of Discrimination against Women
• 1984: Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment
• 1989: Convention of the Rights of the Child• 1990: International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families
• 2006: Convention on the Rights of Persons with Disabilities
Necessity of DRTAPregional aspect
• Administration of CRPD will be too varied in Asia & the Pacific because of its variety of political, economic, social and cultural differences, if there is not any inter-regional judicial system.
• DRTAP can maintain and improve the standard of disability rights.
• DRTAP can provide a multi-layered safeguard for persons with disabilities on an equal basis with other regions.
• A regional tribunal will be more effective than an international one, because it has a community spirit and a geographical advantage.
Possibilities of DRTAP
• Europe, America and Africa have their own regional treaty and regional judiciary.
• Are there any reason that only Asia & the Pacific people can not have a similar system?
• The Rule of Law has been gaining a footing in international society.
Procedural Law AspectHuman Rights Court in other regions
Europe North/South America
Africa
Regional Institute Council of Europe Organization of American States
African Union
ConventionCharter
Convention for the Protection of
Human Rights and Fundamental
Freedoms
American Convention of Human rights
African Chatter on Human and
People’s Rights
Judiciary Court (old 1959, new 1998)
Court (1980) Court (2006)
Plaintiff State/Individual citizen
State/Individual Citizen
State/Citizen*
Common procedure to establish a regional judiciary ≪Ⅰ≫
Regional organizations established• Council of Europe (1949)• The organization of American States(1948)• The organization of African Unity(1963), The
African Union(2000)
Common course to establish a regional judiciary ≪Ⅱ≫
Regional Human Rights Treaty• The Convention for the Protection of Human Rights
and Fundamental Freedoms(1950), European Social Charter(1961)
• The Declaration of the Rights and Duties of Man(1948), The American Convention on Human Rights(1969)
• The African Charter on Human and People’s Rights(1981)
Common course to establish a regional judiciary ≪Ⅲ≫Human Rights Body
• The Commission of Human Rights(1954)• The Inter-American Commission of Human
Rights(1960)• The African Commission on Human and
People’s Rights(1987)
Common course to establish a regional judiciary ≪Ⅳ≫
Court of Human Rights• European Court of Human Rights(1956)• The Inter-American Court of Human
Rights(1980)• The African Court of Human and People’s
Rights(2006)
Previous Projects for Human Rights in Asia & the Pacific
• 1964: Seminar on Human Rights in Developing Countries
• 1965: Southeast Asia & Pacific Conference of Jurists
• 1977,1979,1980: some resolutions on human rights regional body in Asia & the Pacific by General Assembly of the UN
• 1982: Colombo Seminar on Human Rights
Resent Movements in Asia & the Pacific
• Association of South-East Asian Nations(1967) Brunei, Indonesia, Cambodia, Laos, Myanmar,
Malaysia, Philippines, Singapore, Thailand and Vietnam: Observer status, Papua New Guinea, East Timor
• ASEAN + 3; China, South Korea and Japan (1997)
• Charter of ASEAN(2008)
Precedents of Unofficial Tribunals
• 1966: Russell Court• There have been about 20 cases decided by
unofficial tribunals.• They are mainly cases on a war crime, human
trafficking or discrimination against women.• These issues have caused political controversy.• We should start with less political issues, because
political controversy will make it difficult to establish a tribunal.
What is “an Unofficial Tribunal”?• It consists of members who are designated
not by a government but by an NGO run by people with disabilities.
• It hears a case and gives some critical opinions or recommendations from the aspect of CRPD.
Advantages& Disadvantages of “Official” and “Unofficial”
advantage disadvantageOfficial Binding
AuthoritativeDifficult to establishBecomes
bureaucraticSensitive to
political influence
Unofficial Easy to establishDemocraticGrass roots
Independent
Less bindingLess authoritative
Original Approach in Asia & the Pacific
• NGO basis• To develop procedures or institutes to realize or
extend disability rights rather than substantial rights themselves
• To aim at establishing regional tribunal before regional convention or charter on human rights
• To aim at organizing not a court but a tribunal• To be specialized in disability rights issues
Four steps of our strategy• 1st: holding an inter-regional conference to
raise this issue explicitly among people with disabilities in our region
• 2nd:organizing a preparatory committee for the tribunal
• 3rd:establishing our informal regional tribunal and dealing with real cases
• 4th : to make governments and UN realize necessities and possibilities of a regional tribunal and push them to establish it.